Opinion
No. 03-10311.
September 17, 2008.
Camil A. Skipper, Esq., Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Mark J. Reichel, Esq., Sacramento, CA, for Defendant-Appellant.
ORDER
The memorandum disposition filed on July 29, 2008, is hereby amended as follows:
1. Page 4, at footnote 1, line 3: replace "going in" with "going on."
2. Page 8, at lines 3-5: delete "None of the parties addressed . . . any harmless error question."
3. Page 8, at line 5: delete footnote 2.
4. Page 8, at footnote 3: replace the footnote, "Grubbs presented an additional claim on appeal . . . we cannot hold that Rule 41(d) compelled the presentation of the affidavit in this case," with the following:
Grubbs presented an additional claim on appeal, that the former Rule 41(d) required the warrant to be served at the beginning of the search absent exigent circumstances. The district court held that the officers indeed violated the rule, but that suppression was not mandated because the record did not establish deliberate disregard of the rule or prejudice. See United States v. Gantt, 194 F.3d 987, 994 (9th Cir. 1999), overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008). This conclusion was not clearly erroneous. Grubbs also argues that the officers violated the Fourth Amendment by refusing the requests he and his wife made to see the warrant. Grubbs did not raise this argument in the Opening Brief, however, so we do not consider it. See Officers for Justice v. Civil Serv. Comm'n of the City and County of San Francisco, 979 F.2d 721, 725-26 (9th Cir. 1992).
With these amendments, the panel has voted to deny the petition for panel rehearing.
The petition for rehearing is DENIED. No further petitions shall be entertained.
Before: SKOPIL, FARRIS, and BEEZER, Circuit Judges.